The new media rules are a tightening noose

What is worrying is the executive’s idea that users need to be protected against the very media that seek to inform them

March 13, 2021 12:02 am | Updated 01:00 pm IST

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 , notified towards the end of February by the Ministry of Electronics and Information Technology should not come as a surprise because it is of a piece with the systematic incremental erosion of the freedom of speech and expression that has marked the Bharatiya Janata Party’s rule under Prime Minister Narendra Modi. The fate, or the final shape, of the notification will depend on the way the two petitions already filed against it in courts in Kerala and Delhi are decided upon. But the more worrying aspect of this clumsily veiled move by the executive to keep the media — particularly the standalone digital news media , which have generally proved more defiant and inconvenient for the government than the mainstream press or television channels — on a leash is the way it invokes and insinuates the idea that the public, or the users, need to be protected against the very media that in fact seek to make them critically informed citizens, thereby making their democracy that much richer and deeper.

A redress mechanism

For all appearances, the overarching intent of this new set of rules is to put in place a grievance redressal mechanism for the end user or consumer of social media and over-the-top (OTT) platforms and the digital news web portals. That, of course, would normally be an unexceptionable public purpose. But in an already vitiated climate of overweening political and religious majoritarianism, where the street tends to (and is often egged on to), whip up and aggressively nurse and drive a sense of outrage or hurt on any and every issue, irrespective of institutional procedures or safeguards, the nature and scope of the bulk of grievances can easily be imagined.

 

Further, the smaller or medium-sized independent digital news and current affairs portals, which are for the most part struggling to stay afloat irrespective of whether they are newer startups or have been around for a few years, will be the ones hardest hit by this redress requirement. Any criticism of the ruling party or government could trigger an orchestrated avalanche of grievances. The notified rules set out an elaborate time-bound three-tier process whereby each and every such grievance is first handled at the level of the portal itself by its own grievance officer, and if not satisfactorily settled, passes on to the self-regulatory body of the sector or industry, and if yet not resolved, moves further up to an inter-ministerial oversight committee of the central government.

Regulation by the government

The sheer process of such grievance handling can stymie the operations of a relatively smaller digital venture in the news and current affairs space. The process, further, makes a mockery of the concept of self-regulation, with an inter-ministerial committee of government officials in effect becoming an appellate authority over the self-regulatory exercise. This would be self-regulation by the media organisation and the industry at the government’s pleasure; regulation by the government masquerading as self-regulation by the news media entity or industry. What is worse, the notification gives the Secretary, Ministry of Information and Broadcasting, ad hoc emergency powers to block any content the government considers problematic even without such token procedure.

Negation through distortion of the idea of self-regulation is really the nub of the matter, at least as far as the section pertaining to publishers of news and current affairs in the notification is concerned. Real or imagined grievance out there becomes an alibi for this clumsy sleight of hand whereby the government can in effect prescribe, oversee and overrule so-called self-regulation by the publishers. It would be a joke if it did not have such serious implications.

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Poses a financial threat

A measure like this, moreover, jeopardises the very sustenance of the already financially straitened and functionally beleaguered digital news media — unless that is the very intention. Monetisation avenues become scarce, and investors and brands run scared because of what they see as political considerations supervening upon business interests and a whimsical media policy regime in constant flux.

What makes this notification seem more diabolic than ham-handed censorship is the buzz around the same time about confabulations between groups of ministers and journalists — some of them proactively furthering the ruling party’s ideology and agenda, some easily pliable, some perhaps unwary and unwittingly roped into the discussions — and the classification of the journalists by the BJP caucus involved in this exercise based on how cosy or distant they are seen to be to the establishment. It then seems to be part of a concerted move by the government to bring the more critical sections of the news media to heel.

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Eroding pillars of democracy

The case for organic self-regulation by the news media as against by an external authority or body becomes more focused and urgent in the context of this notification and the many anecdotal symptoms of a censorship mindset we see growing around us. It is important to take a step back and remind ourselves that the fourth estate, or the fourth pillar, is as much a player as the other three pillars — the executive, the legislature and the judiciary — in the separation of powers scheme of our constitutional democracy.

Although the freedom of the press per se is not an explicitly prescribed fundamental right in the Indian Constitution, and is, rather, a derivative right from Articles 19(1)(a) and 19(1)(g) which give every citizen the right to free speech and expression, and to practise any profession respectively, these freedoms have in practice become constitutive and definitive of the fourth estate in the country. That fourth pillar of democracy must be in a dynamic relationship of checks and balances vis-à-vis the other three pillars: the executive, the legislature and the judiciary. It is a healthy tension among the four pillars that keeps the democratic edifice strong and vibrant.

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The fourth estate in India, though, has increasingly been at the receiving end of draconian executive acts, invocations of legislative privilege and judicial intolerance. If the fourth estate is to be treated by the executive as an inconvenience to be sidelined, surely the other pillars, the judiciary and the legislature, lay themselves open to the same fate. Already characterisations of democracy, like the illiberal democracy in Orbán’s Hungary or authoritarian democracy here at home, are intimations of the uncertainties ahead. Surely, the body blow delivered to our democracy by the Emergency of 1975-77 must be, more than a bad memory, a lesson at this conjuncture.

At the risk of sounding tongue in cheek, this notification also begs the question as to why the government should go to such devious lengths to trammel press freedom when there are deadlier weapons in its armoury, including the archaic Sedition law and the Unlawful Activities (Prevention) Act, or UAPA, which it has shown little reluctance to use against critical voices.

Truth is getting unstuck

The situation harks back to the beginning of 18th century England, when the idea of the press freedom that we take (or now no longer take) for granted was being fought and suffered for, and secured inch by inch. The mindset of the establishment then was on telling display in the observation of Chief Justice John Holt while giving sweeping powers to the authorities to invoke seditious libel: “If men should not be called to account for possessing the people with an ill opinion of the government, no government can subsist; for it is very necessary for every government that the people should have a good opinion of it.”

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To this flagrant belief could be traced the origins of truth not being allowed as a legal defence in a case of libel, which had such enormous consequences for truthful journalism. It took a very long time to change that premise and make truth a valid defence against libel. Now, again, truth seems to be coming unstuck as a value. This contentious notification takes it an absurd step further. A blatant measure of government regulation of the news media is sought to be passed off as self-regulation by that same news media. If that is not post-Truth, what is?

Sashi Kumar is Chairman, Asian College of Journalism

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